David A. Plymyer: Political, Social & Random Commentary

Shining a light on police misconduct.

The destructive obsession with maintaining the secrecy of police disciplinary records and proceedings, which plagues Baltimore’s criminal justice system and erodes trust in the Baltimore Police Department (BPD), must end. A General Assembly task force recommended that police disciplinary hearing boards be opened to the public. The legislature also should change the law to allow public disclosure of records of police misconduct if the misconduct arises from an officer’s contact with the public or involves dishonesty that compromises an officer’s credibility.

Even city prosecutors are caught unaware by the hidden records. This month, a motion was filed in Baltimore Circuit Court by more than 20 defense lawyers seeking disclosure of the internal affairs records pertaining to BPD Officer Fabien Laronde. The motion cites “a multitude of incidents that raise questions about his credibility,” including allegations that he withheld key information under oath. The motion triggered review by the Baltimore state’s attorney’s office of 20 active criminal cases in which Officer Laronde is involved to determine if the cases remain viable.

If the files pertaining to Officer Laronde reveal evidence of misconduct impugning his credibility it hardly would be the first time that prosecutors were tripped up by information in internal affairs records. Police and prosecutors can ill afford self-inflicted wounds given the other challenges to fighting crime in Baltimore.

The Maryland Court of Appeals held last year in Dashiell v. Maryland State Police that the personnel records of a police officer that are protected from public disclosure by the Maryland Public Information Act (MPIA) include records of an internal investigation conducted as the result of a complaint of misconduct even if the complaint was “sustained” (the officer found guilty of the misconduct) in accordance with the procedures dictated by the Maryland Law Enforcement Officers’ Bill of Rights (LEOBR). Courts can make such records available to defendants in criminal cases, but it will require action by the General Assembly to make the records available to the public.

The secrecy of disciplinary records not only compromises the prosecution of criminal cases, it undermines the confidence of the public in the integrity of law enforcement agencies. In the dissenting opinion in Dashiell v. Maryland State Police, Judge Shirley Watts pointed out that “honoring the public’s right to know how law enforcement agencies respond to misconduct — especially misconduct that arises out of contact with the public — is vital to maintaining the public’s trust in law enforcement.” To paraphrase Judge Watts, transparency is not simply the “best remedy,” it is the only remedy for restoring the confidence of the citizens of Baltimore in their police department.

The Fraternal Order of Police (FOP) argues that disclosure of records of misconduct would lead to public embarrassment of the officers. The desire of officers not to be embarrassed by public disclosures of their own misconduct does not outweigh the public’s right to be able to form its own judgments on how well a police department responds to misconduct, but there is more to it than that. Secreting the records gives rise to concerns that a department may not want the public to know how a department responds to misconduct. Considering the information uncovered by The Sun and other sources over the past two years it is clear that such concerns legitimately apply to the BPD.

Additionally, the FOP’s advocacy for secrecy smacks of the “special privileges” accorded to police officers that are another source of citizen resentment. No other private or public employees enjoy the protections from improvident disciplinary action conferred on law enforcement officers in the state of Maryland. It is unreasonable for the FOP not only to demand the protections of the LEOBR but also to insist that sustained complaints of misconduct that emerge from such a rigorous process be hidden from the public.

The disciplinary system of the BPD has operated in the dark for decades, to its detriment and to the detriment of the city. In her dissent in Dashiell, Judge Watts referred to the oft-quoted statement by Justice Louis Brandeis that “sunshine is said to be the best of disinfectants.” It will take a liberal application of sunshine for the BPD to regain the trust and confidence of the citizens of the city, but it can be done if the General Assembly wants it done.

[Published as an op-ed by The Baltimore Sun on January 19, 2016. I did not post the piece until May 31, 2016; the date of posting listed above was altered to place the piece in chronological order.]